Opinion
CLAIM NO. E609015
OPINION FILED JANUARY 11, 2008
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents No. 1 represented by the HONORABLE CAROL LOCKARD WORLEY, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE JUDY RUDD, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
The Arkansas Court of Appeals has reversed the Commission in the above-styled matter and has remanded "for reconsideration of appellant's wage-loss disability." Wright v. McMillan, Turner, McCorkle Curry, CA07-235 (Oct. 3, 2007). After reconsidering the claimant's wage-loss disability, the Full Commission finds that the claimant sustained wage-loss disability in the amount of 40%.
I. HISTORY
Cathy Lynn Wright, now age 54, testified that she attended high school through the 11th grade. Ms. Wright testified that she was out of school for five years and then attended college for two years, taking business courses. The claimant's employment history included working as a sales clerk in a materials store and as a cashier/stocker at a supermarket. The claimant eventually became a legal secretary, office manager, and bookkeeper in a lawyer's office for five years. The claimant testified that she began working as a legal secretary for the respondent-employer in 1994.
The parties stipulated that there was a May 8, 1996 compensable injury. The claimant testified that after bending down to place a box into a storage room, "I could not get back up. . . . My lower back it was just like it was totally locked up and, I mean, just excruciating pain." An MRI of the claimant's lumbar spine was taken on June 15, 1996, with the impression, "1. Mild disk desiccation at L4-5 and L5-S1 without evidence of canal stenosis or disk herniation. 2. Unusual left periaortic bowel loop vs periaortic adenopathy as discussed."
The claimant began treating with Dr. Tad C. Pruitt, an orthopedic surgeon, on July 31, 1996. Dr. Pruitt treated the claimant conservatively and assigned light work duty. On November 22, 1996, Dr. Pruitt assessed chronic low back pain and "Abnormal MMPI indicative of Conversion Disorder." Dr. Pruitt stated, "I can no longer keep her on light duty and returned her to full duty work without restrictions."
Dr. Jim J. Moore provided a neurosurgical evaluation on January 22, 1997. Dr. Moore stated in part, "There are no signs on examination today that would suggest any intraspinal disease process that would suggest need for neurosurgical intervention or follow. I believe this patient has sustained a stress of the sacroiliac joint and the majority of her problems are related to this. I believe this could likely be handled at a local level, possibly by Dr. Balay, thinking in terms of using a TENS device, perhaps some medication, such as Elavil to improve the brain seratonins and thus the pain threshold, and possibly even biofeedback. . . . Apparently the patient has tried to return to work and has been unable due to the pain she is currently experiencing."
The claimant testified at one point that she did not work after October 14, 1997.
Dr. Moore noted on February 23, 1998 that the claimant's symptoms "should by now have resolved, especially on the basis of the fact that the patient's diagnostic studies have shown no intrinsic lesions that require correcting, nor did the physical examination neurologically show anything of unusual nature as was accomplished by me on 01/22/97."
Dr. Moore noted on March 9, 1998, "Back range of motion, although uncomfortable, is not restricted. Apparently, this patient has also tried to return to work briefly which was unsuccessful, and yet I think if limited activities that would not require prolonged sitting were available, at least on a trial basis, this would at least give her some ongoing motivation." Dr. Moore arranged a repeat MRI and noted on March 23, 1998, "The lumbar MRI does show evidence of an L5-S1 foraminal free fragment of disc being present, which I believe would explain the patient's ongoing back and extremity pain."
Dr. Moore stated on September 21, 1998 that he was not personally willing to pursue a surgical recommendation. Dr. Moore signed a Physician's Statement on August 5, 1999. Dr. Moore indicated that the claimant was not able to work as of the date of the last examination, September 21, 1998. Dr. Moore stated that the claimant had sustained a 10% anatomical impairment. The parties stipulated that Respondent No. 1 accepted a 10% permanent impairment rating.
The claimant was deposed on January 11, 2000. The claimant testified that she had significant physical restrictions. The claimant testified, "Right now, my whole body is about to go into a spasm. My lower back is hurting really bad today. . . . It's constant pain."
Dr. Anthony E. Russell evaluated the claimant on February 18, 2000 and recommended a decompressive hemilaminectomy and facetectomy for far lateral nerve root compression. Dr. Russell performed surgery on May 22, 2000. The claimant informed Dr. Russell on June 30, 2000 that she was "worse than ever." The claimant treated with a pain manager, Dr. Robert G. Valentine, Jr. beginning January 17, 2001. The claimant began treating with another pain manager, Dr. William E. Ackerman, III, on December 13, 2001.
Dr. Ackerman noted on February 21, 2002, "The problem with this case is that she has exceeded the maximum healing time for this injury. It was explained to the patient that she will have pain for the rest of her life, related to the scarring, and she will need long-term pain management. She has reached the maximum healing aspect related to her back surgery. Pain is not compensable under the worker's compensation law, as presently written."
The parties stipulated that the claimant's healing period ended on February 21, 2002.
The claimant was deposed on February 11, 2003. The claimant testified that she was still suffering from significant physical restrictions. The claimant did not think that she was physically able to return to work. "There are some days when I literally just cannot get out of bed. . . . I don't think I would make a very good employee," the claimant testified.
Dr. Anthony E. Russell saw the claimant on May 16, 2003 and scheduled additional diagnostic testing. Dr. Russell noted on June 4, 2003, "The neck study was normal. The lumbar study showed postoperative changes and some bulging at various levels, but nothing that would lend itself to any surgical intervention. . . . I have encouraged her to schedule a follow up with Dr. Valentine. I have not scheduled a follow up for her here as at this time there would be nothing from a surgical standpoint that I could assist her with."
The claimant began lumbar epidural injection treatment with Dr. Butchaiah Garlapati on April 23, 2004. The record indicates that the claimant treated with Dr. Garlapati through at least January 31, 2005.
A pre-hearing order was filed on February 22, 2006. According to the pre-hearing order, the claimant contended that she was entitled to "wage loss/permanent total disability" and an attorney's fee. Respondent No. 1 contended that the claimant was "not entitled to wage loss or permanent and total disability benefits, as rehabilitation was offered as well as job placement." Respondent No. 1 contended that the claimant could not establish "any wage loss disability." The parties agreed to litigate the following issues: "1. Wage loss/permanent and total disability. 2. Attorney's fees."
Heather Naylor, a vocational rehabilitation consultant, provided an Initial Vocational Rehabilitation Evaluation on April 6, 2006. Ms. Naylor summarized her report in part, "She told me that she has not made any attempts to return to the workforce, nor does she have any plans to return to work in the future. It appears that Ms. Wright was working in a sedentary occupation at the time of her injury, and the medical records I reviewed indicate that she is still capable of performing at least sedentary work. Therefore, it is my opinion that Ms Wright is capable of returning to her former occupation as a secretary (which is considered sedentary) or some type of similar related sedentary occupation." Ms. Naylor provided a Labor Market Survey Report on April 24, 2006. The Report identified job possibilities such as desk clerk, secretary, and bookkeeper.
A hearing was held on April 26, 2006. The claimant testified that she suffered from "continual back pain. My left hip — it's like, when I walk or move, it's like the bones are literally grinding together. That's what it feels like. And then that shooting pain down my left leg. And now then I'm having problems with my right side also." The claimant testified that she could not promise a prospective employer that she could be at work every day and that she would be "totally useless" on a bad day.
The claimant agreed on cross-examination that she had made no effort to return to work.
Heather Naylor testified for the respondents:
Q. [B]ased on your review of the medical records, did you have any restrictions or limitations that you needed to work with in order to assist her to return to the work force?
A. It was my understanding that she had been released to sedentary duty to perform her previous occupation as a secretary.
Q. When you talked with her, Heather, did she give you an indication that she was ready, willing, and able to return to work?
A. Ms. Wright told me that she had not made any attempt to return to work since she had last worked, I think in `96, and told me that she did not plan to return to work.
Q. Did she give you any indication, during your conversation with her, that she wanted your assistance at all in finding a job?
A. I asked her, if that was available to her, would she want such assistance, and she indicated that she did not. . . .
Q. Do you have any reason to believe that she could not return to work in a full-duty capacity, based on everything that you've seen in this case?
A. I don't have any reason to think that, no.
The claimant's attorney cross-examined Ms. Naylor:
Q. Wouldn't it be important to know what the present treating physicians would have to say about her ability to perform sedentary or any other type of work if we're trying to find her a job in relation to this hearing held today and a very recent labor market survey?
A. I'm sure that would be important, yes. . . . I've not contacted any of her physicians. . . .
Q. Would you not agree with me that a lady that's fifty-three years old; she has less than a high school education; she drives only in town and on occasions doesn't drive at all because she loses focus — this same lady has pain constantly, some days greater than others; she's medicated such that she feels goofy and experiences memory loss — would you agree with me now, considering all of those things together, that, if, in fact, those things were found to be the case, that she probably couldn't be returned to gainful employment?
A. Would I agree with you? Well, I haven't seen anything in the records saying that, because of her pain that she's experiencing, it would prevent her from working. Again, I would have to rely upon the fact that she has very good skills from her previous work history.
Q. I understand, Ms. Naylor, you're going straight to the objective. I'm asking you to also consider the subjective. I know that's something you don't like to do, but let me ask you to do it today. If we threw in the subjective factors and if they were found to be true and correct and if Judge Marshall was taking into consideration those subjective factors as well as the objective factors, would you not agree with me then that it would be practically impossible for this lady to be returned to gainful employment?
A. Well, if you're saying it like that — if you're saying the subjective is actually going to be true and correct, then, yes.
The administrative law judge found, in pertinent part, that the claimant "failed to prove by a preponderance of the evidence that she is permanently and totally disabled but has shown by a preponderance of the evidence that she has sustained a 20% diminished wage loss disability above the 10% anatomical rating." The Full Commission affirmed and adopted the ALJ's decision. The Court of Appeals has reversed and remanded, concluding that "substantial evidence does not support the Commission's decision that appellant suffered only a twenty-percent wage-loss disability."
II. ADJUDICATION
In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment, the Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee's age, education, work experience, and other matters reasonably expected to affect her future earning capacity. Ark. Code Ann. § 11-9-522(b)(1). In considering factors that may affect an employee's future earning capacity, the Court considers the claimant's motivation to return to work, since a lack of interest or a negative attitude impedes an assessment of the claimant's loss of earning capacity. Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000).
In the present matter, the Full Commission finds that the claimant proved she sustained wage-loss disability in the amount of 40%. The claimant sustained a compensable injury in 1996 and was assigned a 10% anatomical impairment rating in 1999. The claimant underwent low back surgery in 2000. Dr. Ackerman stated in 2002 that the claimant had reached "maximum healing" with regard to her surgery. The Court of Appeals cites Whitlatch v. Southland Land Development, 84 Ark. App. 399, 141 S.W.3d 916 (2004), in which case the Court reversed the Commission's finding that the claimant failed to prove he was permanently and totally disabled. In Whitlatch, an examining physician had found that the claimant was permanently and totally disabled as a result of the claimant's physical findings and narcotic usage; in addition, a vocational consultant had determined that the claimant was not a candidate for any type of employment. The Court of Appeals held in Whitlatch:
[W]hen taking into consideration appellant's limited education, manual-labor employment skills, severe pain in his back and legs, coupled with the side effects of necessary prescription pain medication, in addition to the testimony of his doctors and vocational expert, we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission, finding that appellant was anything less than permanently and totally disabled. . . .
Id. at 406.
The present matter is readily distinguishable from the facts of Whitlatch. The instant claimant was educated only through grade 11 but has taken college-level courses and has several years of experience in professional workplace settings. No examining or treating physician had opined that the instant claimant is permanently and totally disabled. Heather Naylor, who the Commission finds was a credible witness, identified several appropriate jobs for the claimant, which jobs clearly fit within the claimant's described physical restrictions. The claimant expressly informed Ms. Naylor that she was not interested in securing gainful employment. The claimant has not worked since approximately 1997. The claimant is only 54 years old, and the record indicates that she has transferrable work skills within her physical abilities.
After reconsidering the claimant's wage-loss disability, the Full Commission finds that the claimant proved she was entitled to wage-loss disability in the amount of 40%. There is no probative evidence of record demonstrating that the claimant is permanently totally disabled. The Full Commission therefore affirms as modified the administrative law judge's finding that the claimant proved she sustained wage-loss disability in the amount of 20%.
IT IS SO ORDERED. _____________________________ OLAN W. REEVES, Chairman
PHILIP A. HOOD, Commissioner
Commissioner McKinney dissents.